Pettaway

*1315 Opinion

Pursuant to Penal Code section 1238, subdivision (a)(8), the People appeal from the trial court’s dismissal of a murder charge against defendant James Anthony Pettaway. We will reverse the judgment. In doing so we will disagree with People v. White (1986) 185 Cal.App.3d 822 [ 231 Cal.Rptr. 569 ], an opinion rendered by our colleagues in Division Five of this District, We hold that where a defendant has been convicted of first degree murder at his first trial and that conviction is reversed on appeal because of instructional error, the defendant may be retried as the murder perpetrator despite negative jury findings, at the first trial, on the personal use of a handgun and personal infliction of great bodily injury enhancement allegations.

Our summary of the pertinent underlying facts in this case is taken from an earlier unpublished appellate decision by Division One of this District following defendant’s conviction of first degree murder and attempted murder. On May 1, 1981, defendant and his girlfriend Lowana Walker were at the home of Karen Taylor. Another man, Michael Seals, was also present. At some point, Lowana handed defendant a gun and defendant shot…

I concur in the majority’s conclusion that defendant may not be retried on the enhancement allegations that the jury decided in his favor. I dissent from the rest of the opinion, which, with complete indifference to the double jeopardy clause of the Fifth Amendment, concludes that defendant may be retried as the actual perpetrator in the killing of Karen Taylor despite a not true finding on the gun-use allegation at his first trial.

The jury’s determination that defendant was not the trigger man seems as inexplicable to me as it does to my colleagues. The perceived incorrectness of a jury verdict in favor of a criminal defendant does not, however, create a license for appellate courts to right the wrong at all costs. The theory my colleagues contrive to avoid the consequences of the jury’s explicit factual finding is not supported by the cases they rely upon, is analytically unsound and unjust and creates a constitutional problem that will prove far more troublesome than the questionable jury determination in this case.

*1333 In People v. White (1986) 185 Cal.App.3d 822 [ 231 Cal.Rptr. 569 ] another division of this court unanimously held that an accused may not be retried as…

Pursuant to Penal Code section 1238, subdivision (a)(8), the People appeal from the trial court's dismissal of a murder charge against defendant James Anthony Pettaway. We will reverse the judgment. In doing so we will disagree with People v. White (1986) 185 Cal. App.3d 822 [ 231 Cal. Rptr. 569 ], an opinion rendered by our colleagues in Division Five of this District. (1a) We hold that where a defendant has been convicted of first degree murder at his first trial and that conviction is reversed on appeal because of instructional error, the defendant may be retried as the murder perpetrator despite negative jury findings, at the first trial, on the personal use of a handgun and personal infliction of great bodily injury enhancement allegations.

Our summary of the pertinent underlying facts in this case is taken from an earlier unpublished appellate decision by Division One of this District following defendant's conviction of first degree murder and attempted murder. On May 1, 1981, defendant and his girlfriend Lowana Walker were at the home of Karen Taylor. Another man, Michael Seals, was also present. At some point, Lowana handed defendant a gun and…